IN THE PUBLIC PROCUREMENT APPEALS AUTHORITY AT DAR ES SALAAM APPEAL CASE NO. 20 OF 2016-17 BETWEEN M/S GECI ESPANOLA S.A….…………………………….APPELLANT AND TANZANIA CIVIL AVIATION AUTHORITY………………RESPONDENT DECISION CORAM 1. Hon. Vincent K.D. Lyimo, J. (rtd) - Chairman 2. Mrs. Rosemary A. Lulabuka - Member 3. Ms. Monica P. Otaru - Member 4. Mr. Ole-Mbille Kissioki - Secretary SECRETARIAT 1. Ms. Florida Mapunda - Senior Legal Officer 2. Mr. Hamisi O. Tika - Legal Officer 3. Ms. Violet S. Limilabo - Legal Officer 1 | P a g e FOR THE APPELLANT 1. Mr. Octavianus Mushukuma - Advocate – KAMU Attorneys 2. Ms. Leticia R. Msechu - Advocate – Sarc Law Chambers 3. Mr. Ferrao Makombe Joan - GECI Espanola- Africa Representative 4. Mr. Mshenga A. Nasseb - GECI Espanola- Tanzania Representative FOR THE RESPONDENT 1. Mr. Valery L. Chamurungu - Corporate Secretary 2. Mr. Yoswam M. Nyongera - Head Procurement Management Unit(PMU) 3. Mr. Hamis R. Mussa - Principal Procurement Officer 4. Mr. Shukuru A. Nziku - Senior Air Controller 5. Mr. Kriston N. Nwala - Principal Air Navigation Engineer OBSERVER Ms. Jackline Silaa - Associate – ATZ Law Chambers The Decision of this Appeal was scheduled for delivery today 24th March 2017, and we proceed to deliver it. The Appeal was lodged by M/s GECI ESPANOLA S. A. (hereinafter referred to as “the Appellant”) against TANZANIA CIVIL AVIATION AUTHORITY commonly known by its acronyms TCAA (hereinafter referred to as “the Respondent”). The Appeal is in respect of Tender No. AE/028/2016-2017/HQG/01 for Manufacturing, Supply, Installation, Testing and Commissioning of Four (4) 2 | P a g e Collocated Primary Surveillance S-Band Radar (PSR) with Monopulse Secondary Surveillance Radar System (MSSR) Mode- S Capable for Julius Nyerere International Airport (JNIA), Kilimanjaro International Airport (KIA), Mwanza Airport and Songwe Airport (hereinafter referred to as “the Tender”). According to the documents submitted to the Public Procurement Appeals Authority (hereinafter referred to as “the Appeals Authority”), the facts of the Appeal may be summarized as follows: The Respondent invited tenderers to participate in the Tender through advertisement in the Daily News and Mwananchi newspapers dated 14th September 2016, East African newspaper dated 17th September 2016, TCAA website on 14th September 2016 and PPRA website/TPJ Vol.23 on 20th September 2016. The deadline for submission of the tenders was initially set for 13th October 2016 then extended to 27th October 2016 whereby six (6) firms submitted their tenders. Tenders were subjected to evaluation which was conducted in three stages namely; preliminary evaluation, detailed evaluation and post qualification. Five (5) tenders, the Appellant’s inclusive, were disqualified at the preliminary evaluation stage. The remaining tender was subjected to detailed evaluation and post qualification. Upon completion of the evaluation process the Evaluation Committee recommended award of the contract to M/s Thales Air Systems Parc Tertiaire SILIC 3 at the contract price of Euro 22,351,248.00 and TZS. 3,671,608,308.00 (VAT Exclusive) subject to negotiations and specific physical verification. 3 | P a g e The Tender Board at its meeting held on 17th November 2017 approved the award of contract as recommended, whereby on 20th to 22nd December 2016 negotiations were conducted. On 28th December 2016, the Tender Board approved the pre-contract negotiations and award recommendations. On 7th February 2017, the Respondent notified the Appellant of its disqualification and intention to award the Tender to M/s Thales Air Systems Parc Tertiaire SILIC 3. Dissatisfied with its disqualification, the Appellant applied for administrative review to the Respondent through a letter dated 14th February 2017. On the following day the Respondent dismissed the Appellant’s complaints for lack of merits. Aggrieved by the Respondent’s decision, on 23rd February 2017, the Appellant lodged this Appeal. SUBMISSIONS BY THE APPELLANT The Appellant filed four (4) main grounds of Appeal as follows:- 1. That, the Appellant was not served with Addendum No. 3 that varied the number of students from 29 to 33 students, claiming that there was no evidence that the alleged e-mail was either sent by the Respondent or received by the Appellant. The Appellant submitted that, the fact that Addendum No. 3 was served through usual email address that has been used to serve 4 | P a g e other documents to the Appellant does not guarantee that the said document was received by the Appellant. Thus the Respondent was required to use reliable mechanism to ensure that the said Addendum has been served on the Appellant taking into consideration the sensitivity of the Tender. Therefore, the Respondent’s act lacks transparency and has an ill motive against the Appellant. 2. That the Appellant described scope of work and controller working positions configurations pursuant to Clause 31.3 (a) and (b) of Section III of the Technical Specification as provided for in the Tender Document. The Appellant submitted that the Respondent could have sought for clarification from the Appellant with regard to scope of work and controller working position configuration. Therefore, the Respondent’s failure to seek for clarification amounts to unfair treatment of the Appellant’s tender. 3. That the Respondent unfairly disregarded UHD display offered by the Appellant given the fact that the specifications offered by the Respondent had no minimum requirements and therefore did not bar the Appellant from offering displays which surpassed the requirements and without affecting the tender prices. 4. That it’s tender had the lowest quoted price amounting to USD 18,877,997.00 and TZS 1,309,156,999.80 compared to the proposed 5 | P a g e successful tenderer who had quoted EURO 22,351,248.00 and TZS 3,671,608,308.00 which was expensive by 25% equivalent to TZS 14.3 Billion. The Appellant submitted that awarding the Tender to the highest tenderer is uneconomical and goes against the Government’s policy of value for money. Therefore, the Respondent has no any justification to disqualify the Appellant’s tender while it has complied with all the requirements of the Tender Document. Finally, the Appellant prayed for the following Orders:- i. To declare that the Appellant complied with the requirements of the Tender Document; ii. To declare that the Appellant complied with all technical specifications and was the lowest tenderer thus entitled the award of the tender; iii. The Respondent to pay the Appellant a sum of USD 20,000.00 incurred by them as legal fees; iv. The Respondent to pay the Appellant a sum of USD 5,000.00 being travelling, accommodation and incidental costs incurred by the Appellant; v. The Respondent to pay TZS 200,000.00 being Appeal filing fees; and vi. Any other reliefs this Appeals Authority deems fit to grant. 6 | P a g e REPLIES BY THE RESPONDENT In its replies to the Appellant’s grounds of Appeal, the Respondent submitted as follows:- 1. That on the 1st ground, Addendum No. 3 was served on the Appellant through its representatives’ official e-mail addresses on Thursday 13th October 2016 at 4:23pm and the same was delivered to [email protected],[email protected],[email protected] om. The Respondent submitted further that the same e-mail addresses were used to send other Addenda, clarifications of Tender and notice of intention to award the contract which were received by the Appellant. Thus the Appellant’s failure to quote 33 students contravened the requirements of the Tender Document. The Respondent added further that Regulation 12(1) and (3) of the Public Procurement Regulations, GN. No. 446/2013 (hereinafter referred to as GN. No.446/2013) does not provide for requirement of acknowledgement from bidders provided that, such information is duly served on all bidders. 2. With regard to the 2nd ground, the Respondent submitted that, the Appellant’s tender was contrary to requirements of Clause 31.3 (a) and (b) of Section III of the Tender Document. That the Respondent evaluated the tender pursuant to Regulation 203 of GN. No. 446/2013 and that the Appellant’s tender was fairly disqualified for 7 | P a g e failure to comply with technical requirements pursuant to Regulation 205 (c) of GN. No. 446/2013. Furthermore, the Respondent stated that, specifications provided in the Tender Document were self explanatory. 3. With regard to the 3rd ground, the Respondent argued that, Technical Specifications provided in the Tender Document stated clearly that LCD Air Situation displays were required due to various reasons and that failure to comply with the requirement was contrary to Clauses 3.1, 3.2, 3.3, 7.1, 7.2, 7.3, 11.1, 11.2, 11.3, 15.1, 15.2, 15.3 and 32.3.2 of the Tender Document. 4. In relation to the 4th ground, the Respondent submitted that, the Tender Document provided a provisional sum of TZS. 3.5 billion for civil and electrical works which was changed by the Appellant at the tendering stage while the same was not subject to change. That value for money principle applies to substantially responsive bids and not bids which have been considered non-responsive. Finally the Respondent prayed for the following Orders:- i. Dismissal of the Appeal for lack of merits; ii. Costs to the tune of TZS 10,000,000.00/-; and iii. Any other order the Appeals Authority may deem just to grant. 8 | P a g e ANALYSIS BY THE APPEALS AUTHORITY Before embarking on the Analysis of this Appeal, we have one observation to make. On 21st March 2017 when the matter was called for hearing the Appellant’s Counsel submitted that some of the Appellant’s experts from Japan have not yet arrived.